State v. Mross, 360 P.3d 670

Defendant’s cell phone was searched after his parole officer, Kieling, obtained consent; police later executed a warrant and found six photos of prepubescent girls.
State indicted defendant on six counts of second-degree encouraging child sexual abuse (ORS 163.686), alleging possession of visual recordings of sexually explicit conduct.
Trial was to the court (defendant waived a jury); all six photographs were admitted into evidence.
Trial court convicted defendant on four counts, later identifying Exhibits 2B, 3A, 4A, and 4B as the bases; those images depicted young girls in sexually suggestive poses with underwear/partial exposure.
The key legal question was whether the photographs could support a finding that they were taken with the intent to arouse sexual desire (i.e., constituted a "lewd exhibition" under ORS 163.665(3)(f) and ORS 163.686).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the state proved photographer intent to arouse viewers required by statute	Photographs themselves are sexually suggestive and permit a reasonable inference of intent	No evidence about creation circumstances; photos alone insufficient to prove intent to arouse	Court upheld convictions: photos’ composition, poses, and focus on children allow reasonable inference of intent
Whether the evidence was legally sufficient to convict based only on the images	Circumstantial evidence and reasonable inferences from the images meet the beyond-a-reasonable-doubt standard	Images are not proof of the exhibitor’s subjective intent; conviction speculative	Court applied sufficiency standard for bench trial and found evidence sufficient

State v. Meyer, 852 P.2d 879 (Or. Ct. App. 1993) (construed "lewd exhibition" to require intent to stimulate sexual desire of viewers)
State v. Bivins, 83 P.3d 379 (Or. Ct. App. 2004) (discusses sufficiency review and use of circumstantial evidence and inferences)